The year 2020 saw record-breaking wildfires, hurricanes, heat waves, and other events that were worsened by climate change. But it also saw rapid advances in clean energy, and positive moves at international, federal and New York levels.
More than 4 million acres burned in California in 2020, more than doubling the state’s previous record. These wildfires and those in Oregon, Washington and Colorado sent smoke across the continent. Much of the western United States was experiencing what the federal government calls “extreme” or “exceptional” drought. Globally the year is on track to be either the warmest or the second warmest year in recorded history; the past five years have been the five warmest years since recordkeeping began in 1880. Those were just average temperatures; the extremes were much worse, with Death Valley, California hitting 130°F, which may be the highest outdoor temperature ever recorded on Earth. In November, Subtropical Storm Theta became the 29th named storm of the 2020 hurricane season – the largest number ever.
The global pandemic is expected to lower the world’s carbon dioxide emissions for the year about 8%, the largest drop ever recorded. The climate doesn’t notice this drop; carbon dioxide levels in the atmosphere represent cumulative emissions. These concentrations continue their inexorable rise and reached 417 parts per million in 2020, the highest level in three million years..
The future trajectory of emissions will be influenced by the pace and nature of the economic recovery; there is much talk of a “green recovery,” which would involve major investments in wind, solar and other clean technologies. Prior economic downturns have led to only temporary slowdowns in emissions growth. According to the International Energy Agency, supply chain disruptions and construction delays caused by the pandemic slowed the progress of renewable energy projects in the first six months of 2020, but construction of plants and manufacturing activity ramped up again quickly. Almost 90% of the increase in total power capacity worldwide in 2020 was from renewables. Costs have dropped so rapidly that solar photovoltaic and onshore wind are already the cheapest way of adding new electricity-generating plants in most countries, and renewables are expected to overtake coal to become the largest source of electricity generation worldwide in 2025.
Global and National Developments
As climate concern and activism spread globally (personified by Time Magazine’s 2019 Person of the Year, the young Greta Thunberg), ambitious climate pledges were adopted at a fast pace. In 2020 the European Union, Japan and South Korea all announced goals of net zero carbon emissions by 2050. China (by far the largest greenhouse gas (GHG) emitter in the world, having surpassed the U.S. in 2007) pledged net zero emissions by 2060.
In the United States, Congress has not acted on climate change; in fact Congress has not adopted a major new environmental law since 1990. The administration of President George W. Bush (2001–2009) took very little action on climate change. The Barack Obama administration (2009–2017) attempted to reverse course. Unable to achieve comprehensive legislation, it adopted an extensive set of regulations and executive orders to reduce emissions. When Donald J. Trump, who has called climate change a “Chinese hoax,” took office in January 2017, the federal government abruptly reversed its course again. The Sabin Center for Climate Change Law has documented 164 actions taken by the Trump administration to revoke or weaken climate change actions and encourage fossil fuel extraction and use, and ’327 actions to silence, disregard or misrepresent science (though not all of these concerned climate change; many related to COVID-19, for example).
The election of Joseph R. Biden, Jr. is leading to yet another reversal. President-elect Biden has declared climate change to be one of his top priorities (together with COVID-19, economic recovery and racial equity). He has termed climate change “an existential threat,” and has pledged that the United States will have carbon-free electricity by 2035 and net zero greenhouse gas emissions by 2050. He called for a $2 trillion program that would achieve these goals and also create millions of jobs to build the massive clean energy infrastructure that would be required.
The prospects for fully realizing this mission dimmed when, contrary to the polls, the anticipated “blue wave” did not occur on November 3 and the Democrats did not take a clear majority in the Senate. As this article is going to press, party control of the Senate depends on the outcome of two runoff elections to be held in Georgia on January 5. Even if the Democratic candidates win both races, the 50-50 Republican-Democratic split (with tie votes cast by Vice President Kamala Harris) may be too fragile to enact major climate legislation and provide the large appropriations sought by Mr. Biden. The new administration will, like the Obama administration, need to rely on existing statutory authority. A great deal is still possible, but much less than with a cooperative Congress.
Meanwhile, many states have been stepping up to the plate.
Fourteen states – Maine, Vermont, Rhode Island, New York, New Jersey, Delaware, Virginia, Wisconsin, Colorado, New Mexico, Oregon, Nevada, California and Hawaii, and also the District of Columbia and Puerto Rico – have adopted policies to implement 100% clean electricity, and several others have only slightly less ambitious goals. Ten of these states have also pledged to achieve net zero emissions not just for electricity generation but for all GHG sources. Many cities and businesses have adopted their own GHG reduction commitments, as documented by the group America’s Pledge.
Some of these goals are enshrined in legislation, but many are just in executive orders. New York now has what is arguably the strongest climate change law of any state.
Climate Leadership and Community Protection Act (CLCPA)
The CLCPA was enacted in July 2019 and took effect on January 1, 2020. It requires that New York’s GHG emissions be 40% below 1990 levels in 2030 and 85% below 1990 levels in 2050, with a goal of net zero emissions in 2050. It also requires that 70% of electric power demand in 2030 be met by renewables, and 100% be from “zero emission” sources (which would include nuclear) by 2040. While most other states’ targets are merely aspirational, those under the CLCPA (arguably except for the 2050 goal of net zero) are designed to become legally enforceable regulations of the Department of Environmental Conservation (DEC) and (in the case of electricity) the Public Service Commission (PSC).
Determining how to achieve these requirements is in the first instance left to the Climate Action Council, a 22-member body that has 12 state agency heads and 10 appointees of state legislative leaders and the governor. The Council held its first meeting on March 3, just before the widespread shutdowns due to the pandemic, and since then has held several virtual meetings. The Council has also formed six advisory panels – Agriculture and Forestry, Energy Efficiency and Housing, Energy-Intensive and Trade-Exposed Industries, Land Use and Local Government, Power Generation, and Transportation. Also advising the Council are the Climate Justice Working Group, the Environmental Justice Interagency Coordinating Council, and the Just Transition Working Group. All of these groups have been formed, are chaired by state commissioners, and have been meeting virtually. (The members of an additional body, the Environmental Justice Advisory Group, have not yet been appointed.)
The CLCPA requires the Council to issue a draft “scoping plan” – a detailed blueprint for how to meet the statute’s goals – by January 2022; to hold extensive public consultations; and to issue a final plan by January 2023. DEC then has until January 2024 to issue regulations to enforce the plan. The PSC is required to adopt rules to meet the electricity goals by June 2021. The Sabin Center’s New York State Climate Law Tracker is monitoring compliance with these and the many other deadlines in this new law and the others discussed in this article.
DEC has launched a rulemaking process pursuant to the CLCPA to determine total statewide GHG levels so that the required reductions can be calculated. As required by the statute, DEC has also published a draft Value of Carbon Guidance providing values for carbon dioxide, methane, and nitrous oxide for use by state agencies.
On October 15, the PSC approved an expanded clean energy standard, establishing many technical details and enabling the state to issue a request for proposals for some of the renewable power generation sources needed to implement the CLCPA’s electricity mandates. The PSC has extended the state’s distributed solar incentive program, and has accepted a Final Supplemental Environmental Impact Statement on the procurement of renewable energy resources needed to meet the CLCPA targets.
The largest portion of GHG emissions in New York State – 36% – is from transportation. Federal law preempts states from setting motor vehicle emission standards. The Trump administration revoked the Obama administration’s progressively more stringent standards, endangering New York’s ability to meet its targets. President-elect Biden has promised to tighten the standards in pursuit of his climate goals.
The second largest source of GHG emissions in New York State is buildings (30%). Their emissions come primarily from the use of oil and natural gas in their heating, cooling, water heating and cooking systems. (The electricity they use is considered as part of the power sector, which is 15% of statewide emissions.) Drastically reducing these emissions will require electrification of many of these units, probably involving heat pumps. In 2019 New York City adopted its own law, called Local Law 97, which will require major reductions in carbon emissions from buildings in the city larger than 25,000 square feet. During 2020 there was a great deal of discussion (and some consternation) in New York City of how to comply with this new law, and its relationship to the CLCPA.
Accelerated Renewable Energy Growth and Community Benefit Act (AREGCBA)
Achieving the CLCPA’s goals will require a massive program of building new renewable energy facilities, primarily wind and solar, and the associated energy storage and transmission. There are three reasons for this. First, virtually all of New York’s natural gas–burning generating plants will have to be shut down by 2040 to meet the CLCPA clean electricity goal. (There are no remaining coal-burning power plants in New York, and petroleum products are used to make electricity only in emergency generators and the like.) Second, by 2040 most of the state’s nuclear power plants (which in 2019 provided one-third of the state’s electricity) will have been retired. Third, the CLCPA will require a transition from internal combustion engines to electric vehicles, and also the conversion of many buildings’ heating and cooling systems to electricity. Thus, despite aggressive energy efficiency measures, the demand for electricity will soar while much of the existing supply will close. A consulting firm hired by the New York State Energy Research and Development Authority has projected that in order to meet the CLCPA goals, by 2050 the capacity of land-based wind farms in New York will have to go from 2.1 to 9.0 gigawatts; offshore wind from zero to 15.5 gigawatts; and solar from 2.8 to a remarkable 45.9 gigawatts. (Each of the two units at the Indian Point nuclear power plant in Westchester County, which is being shut down, was just over one gigawatt.)
New York adopted a law called Article 10 in 2011 to allow faster and easier permitting of renewable energy facilities. It has been a terrible failure. Projects languish in the Article 10 process, some as long as eight years. Not a single renewable project approved under Article 10 is operational yet.
Recognizing that the facility siting and approval system is broken, on April 3 Governor Cuomo signed the AREGCBA, which is designed to fix the problem. The new law creates an Office of Renewable Energy Siting (ORES) within the Department of State. It is required to establish a set of uniform standards and conditions for designing and operating new renewable facilities in order to avoid or minimize any adverse environmental impacts. ORES has already issued a draft of these standards and conditions. All applications for renewable facilities with capacity greater than 25 megawatts must apply to ORES; no other state or local entity has permitting authority over these facilities. Some of the time-consuming processes of the old Article 10 have been eliminated.
One of the most contentious issues in the siting of renewables has been the role of municipalities. Under the AREGCBA, applicants must consult with the municipality where the facility is located before filing its application. The municipality has 60 days after ORES determines the application to be complete to notify ORES whether the project complies with local laws concerning the environment and public health and safety. If the municipality declares noncompliance, ORES must hold a hearing. Projects must adhere to all local laws unless ORES finds them to be “unreasonably burdensome.” A sweetener for municipalities is that final permits must include host community benefits. The PSC is required to start a proceeding to identify utility bill discounts or other benefits in communities that host renewable facilities.
The AREGCBA also includes provisions to speed the approval of the transmission lines that will be required to carry the electricity generated by renewable facilities to its users.
Environmental Justice Law
Environmental justice groups played a major role in achieving the passage of the CLCPA. Though the CLCPA was signed on July 18, 2019, by its terms it did not go into effect until after the enactment of a new environmental justice law. That bill was passed by the state legislature on June 20, 2019 and signed into law by Governor Cuomo on December 23 as Article 48 of the Environmental Conservation Law. It took effect on January 1, 2020.
The new law declares “to be the policy of this state that all people, regardless of race, color, religion, national origin or income, have a right to fair treatment and meaningful involvement in the development, implementation and enforcement of laws, regulations and policies that affect the quality of the environment.” It also declares that “no group of people, including a racial, ethnic or socioeconomic group, should be disproportionately exposed to pollution or bear a disproportionate share of the negative environmental consequences resulting from industrial, municipal or commercial operations.”
The law provides that communities affected by various governmental actions or approvals “be provided as early as possible in the decision making process” with technical data and other information about the actions, and be given “opportunities for two-way dialog.” The law creates a Permanent Environmental Justice Advisory Group that will adopt a model environmental justice policy applicable to state agencies; monitor compliance with the environmental justice policies of state agencies; and provide comments on proposed rules. Each state agency “shall be guided in its decision making” by the environmental justice policy.
The processes that New York launched in 2020 to fight climate change are among the most comprehensive of any jurisdiction in the world. During 2021 implementing those processes will involve even more intense work across many governmental agencies and economic sectors. At the same time the new Biden administration in Washington will be introducing its own aggressive climate policies, with or without the help of Congress. Concerted action will be required at every level of government, throughout the U.S. and indeed worldwide, to help make sure that the sorts of terrible climate events that occurred in 2020 do not become far worse in the years to come. New York has an opportunity to help show the world how its strong emission reduction pledges can be fulfilled.
Michael B. Gerrard is a professor and director of the Sabin Center for Climate Change Law at Columbia Law School. He is a former partner and currently senior counsel in the New York office of Arnold & Porter. His latest book is Legal Pathways to Deep Decarbonization in the United States (co-edited with John Dernbach, 2019).
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